Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes and the rules promulgated pursuant thereto. The Respondent, Patricia Sue Shelley, is now and was at all times material hereto a licensed real estate salesperson in the State of Florida having been issued license number 0454282 in accordance with Chapter 475, Florida Statutes. The last license issued was effective 3/10/92, with a home address of 2413 Euston Road, Winter Park, Florida 32789-3416. From July 9, 1990 to December 5, 1990, the Respondent was licensed as a real estate salesperson with Don Gallagher, Inc. t/a The Prudential Gallagher Properties (Petitioner's Exhibit #4). Her status was property manager. While employed as the property manager the Respondent collected $1,450 in rental funds during November and December 1990, but failed to deliver the rental funds to her employing broker. The Respondent and the broker had an ongoing commission dispute and the Respondent kept the $1,450 because she felt that the broker owed her the money. On December 7, 1990, the Respondent delivered a check from her personal account in the amount of $1,450, to the broker notated: "$ rent for Curry Ford and Dover Circle". These were properties being managed by the broker. (Petitioner's Exhibit #1). On December 8, 1990, the broker deposited the Respondent's check into escrow, but the check was returned annotated: "payment stopped do not redeposit." (Petitioner's Exhibit #2). On December 17, 1990, employing broker Don Gallagher sent the Respondent a demand letter, but the Respondent refused to deliver the trust funds to Don Gallagher. (Petitioner's Exhibit #3). Petitioner's husband recommended that she keep the rental money and get with Don Gallagher about the commission. He later recommended that she just give the money back and is not sure why she did not. She has been under a physician's care for manic depression for about 1 1/2 years. Ms. Shelley's license record includes no other alleged violations or discipline.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a Final Order be entered, finding Patricia Sue Shelley violated Sections 475.25(1)(e) and (k), F.S., suspending her license for two years, with the condition that the suspension be lifted anytime after 90 days, if restitution of $1,450 is made to her former employer/broker. After suspension is lifted, Respondent should be placed on probation for one year under such conditions as may be appropriate, including participation in continuing education courses regarding the handling of deposits and other funds received in trust. DONE and ENTERED this 29th day of October, 1992, at Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1992. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Patricia Sue Shelley, pro se 2413 Euston Road Winter Park, FL 32789-3416 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900
Findings Of Fact Respondent Shirley Holland was registered with Petitioner as a real estate salesman in January, 1976, associated with Vern Duncklee Real Estate and Insurance, Inc., Naples, Florida. He is presently registered as a real estate broker. (Stipulation) On January 5, 1976, W. H. Ragan gave the Duncklee firm a listing to sell real property consisting of approximately one and one-quarter acres located in Collier County, Florida, for a selling price of $7,500. Respondent was the listing salesman. (Testimony of Respondent, Ragan, Duncklee, Petitioner's Exhibit 6). Respondent also was a builder who operated as Holland Investment Company. It was his practice to purchase various properties, remodel existing structures on the same, and thereafter sell them at a profit. There was a two- room shed located on the Ragan property that had no inside finishing work, electricity, or septic tank. Respondent decided to take an option on the property in order to remodel it by adding a room and to place it in a habitable condition. He broached the subject to Ragan on January 6, 1976, and Ragan told him on January 7, that he was agreeable to such a contract. On January 8, Respondent and Ragan and his wife entered into a Sales Contract and Option to Buy for $7,500. The contract provided that closing would take place within twelve months and that the seller would give possession of the property to the purchaser on January 8, 1976. This was pursuant to an accompanying rental agreement dated January 8, 1976, between the parties for a period of twelve months which provided that Respondent could exercise his option at any time within the stated twelve-month period whereby all rents paid would be applied toward the down payment on the property of $1,900 which was to be made at closing of the sale. The rental agreement further provided that if Respondent did not exercise his option within the required time, any improvements made by him on the property during that period would be considered liquidated damages of the owner. Pursuant to these agreements, Respondent made a payment of $100 at the time they were executed, which represented an initial deposit on the contracts and as rent for first month of the term. The Option Agreement also gave Respondent authority to remodel the building on the property and it further reflected that Respondent was a registered real estate salesman and would be selling the property for profit. (Testimony of Respondent, Duncklee, Petitioner's Exhibits 5, 7) On January 5, 1976, Respondent showed Harold and Ruby Stacy several houses in the area that were for sale. On January 9, Respondent went by the Stacy residence to see if they were interested in any of the houses he had shown them. They were not interested in those houses and Respondent told them of property that he had recently acquired which was the Ragan property. He showed it to Mr. Stacy that night and the next day Mrs. Stacy went with him to look at the premises. During the course of their conversations, Respondent offered to rent the property to them for $100 for the period January 10 to February 1, 1976. It was his intention to rent it to them for $125 per month commencing in February on the condition that they clean and fix up the property. They also discussed the possibility of purchase at a later date. Respondent told them that he would sell to them for $13,000 if Harold Stacy would do the remodeling work on the shed with Respondent supplying the materials. Respondent quoted a possible sales price of $14,500 if he was obliged to provide both labor and materials for renovating the shed and providing for utility services. Respondent and the Stacys entered into a rental agreement on that day for the initial period of some three weeks and Ruby Stacy gave him a check dated January 10 for $100 with a notation thereon that it was a deposit on land. Respondent explained to Mrs. Stacy that he was merely renting the property at that time and added the word "rent" at the bottom of the check. (Testimony of Respondent, Petitioner's Exhibit 1, 2) Thereafter, the Stacys proceeded to clean the premises and commence installing a ceiling in the building located on the property. They also installed a septic tank. At some undisclosed date, Ragan came to the property to obtain some of his belongings and found the Stacys there. He learned that they supposedly had purchased the property from Respondent, Ragan was of the opinion that Respondent had purported to sell the property before he had obtained the option thereon and that he had therefore defrauded the Stacys. Ragan thereupon filed a complaint against Respondent with the local Board of Realtors in latter January, 1976. About the same time, Respondent had been in the process of obtaining local permits to install the septic tank and do the other work. He discovered that the Stacys had installed a septic tank without his authorization and without obtaining a permit. He thereupon, by letter of January 21, 1976, informed the Stacys that they had done work on the property without a building permit or approval of the County Health Department and therefore was refunding the rental payment of $100. He enclosed his check in that amount, dated January 21, 1976. Although Respondent later attempted to exercise his option to purchase the property, Ragan refused to fulfill the agreement and later sold the property to the Stacys himself for $7,500. (Testimony of Respondent, R. Stacy, Ragan, Petitioner's Exhibits 3,4) Mrs. Stacy testified at the hearing that she was under the impression that she and her husband had purchased the property in question on January 10, 1976, and that the $100 payment had been a deposit for such purchase. She was under the further impression that they were to make a $2,500 down payment in February to consummate the deal. She further testified that they made the improvements on the land because of their understanding that they were going to purchase it. Mrs. Stacy had never been involved in a prior purchase of real property and is unfamiliar with contract documents and terminology. It is found that Mrs. Stacy honestly believed that she and her husband had a valid agreement to purchase the property. Her testimony that she and her husband entered into the rental arrangement in January to enable them to work on the property until they could make the down payment in February is deemed credible. (Testimony of R. Stacy) Ragan and Respondent had been involved in a prior real estate transaction and Respondent testified that Ragan had not been satisfied with that transaction, but Ragan testified to the contrary. However, Ragan talked to Respondent's broker in January, 1976, about the Stacy situation, at which time Ragan stated that he had a chance to get even with Respondent for the prior transaction and that he was going to do so. (Testimony of Respondent, Ragan, Duncklee, D. Holland)
Recommendation That the Administrative complaint be dismissed. DONE and ENTERED this 8th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Ed R. Miller, Esquire Suite 212 - 1400 Gulf Shore Boulevard Naples, Florida 33940
The Issue The issues in these cases are whether Respondent, Cristal Coleman, committed the violations alleged in two separate four- count Administrative Complaints filed with the Petitioner Department of Business and Professional Regulation on April 17, 2009, and, if so, what disciplinary action should be taken against her Florida real estate associate license.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes. The Division is charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapters 455 and 475, Florida Statutes. Respondent, Cristal Coleman, was at the times material to this matter, the holder of a Florida real estate associate license, license number 693909, issued by the Division. From January 4, 2005, until March 31, 2008, Ms. Coleman was registered as a sales associate with Cristal Clear Realty (hereinafter referred to the “Realty Company”). Cristal Clear Rentals, LLC., and Ms. Coleman’s Relationship Thereto. Cristal Clear Rentals, LLC (hereinafter referred to as the “CC Rentals”), is a Florida limited liability company registered with the office of the Florida Secretary of State, Division of Corporations. CC Rentals business consisted of marketing and renting for compensation transient rental properties. CC Rentals did not engage in the sale of real estate and, therefore, was not registered with the Division as a licensed real estate broker. Ms. Coleman became the sole managing member of CC Rentals as of December 5, 2007. As a managing member, CC Rentals office manager, rental manager, and accountant reported to her on a regular basis. The Richard Bloom and Greg Sousa Rentals. CC Rentals, at the times relevant, was managing two separate properties, one owned by Richard Bloom (hereinafter referred to as the “Bloom Property”), and one owned by Greg Sousa (hereinafter referred to as the “Sousa Property”). The nature of the role of CC Rentals in managing the Bloom Property and the Sousa Property was not proved. Whatever agreements existed as to the management of these properties was not proved. Nor was any evidence presented as to whether any money, in the form of a security deposit, rental fees, or any other form, was received or in the possession of CC Rentals at the times relevant to this matter. On or about May 6, 2008, a form email was sent from Ms. Coleman’s email address to clients of CC Rentals notifing clients of the financial demise of CC Rentals (hereinafter referred to as the “Email Notice”). The Email Notice was sent to Mr. Bloom and to Mr. Sousa. In pertinent part, the Notice Email stated: We regret to advise you that Cristal Clear Rentals, LLC is no longer sufficiently solvent to continue operating. The Company has ceased trading effective May 6, 2008. We have tried to weather a very difficult season where the economic crisis in our country has seriously impacted travel and especially rentals in the Florida Keys this year. Since the Company has no funds, we need to advise Owners: The contract between you and Cristal Clear Rentals, LLC is no longer valid and is terminated. There are no funds to pay Owners any rentals collected but not yet paid to Owners through April 2008. If there are current reservations we are providing the contact details below to allow you to make direct contact with your pending guests. Since there are no funds in Cristal Clear Rentals, LLC, the Company cannot refund any security deposits to the people who made the reservation. This means that any Owner accepting the reservation directly will need to reimburse the guest out of pocket for the amount of the Security Deposit after their stay. . . . . According the specific information included in Email Notices sent to Mr. Bloom and Mr. Sousa, there were tenants in the Bloom Property and Sousa Property of a term longer than a transient rental. Ms. Coleman was not, however, aware of either rental property or the nature of any agreement with Mr. Bloom and Mr. Sousa for the management of their properties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission: Finding that the Division failed to prove any of the violations alleged in the Administrative Complaints; and Dismissing the Administrative Complaints. DONE AND ENTERED this 23rd of November, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2009. COPIES FURNISHED: Jennifer Blakeman, Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Nicholas W. Mulick, Esquire Nicholas W. Mulick, P.A. 91645 Overseas Highway Tavernier, Florida 33070 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On June 6, 1975, respondent entered into a written agreement with John R. Lovett, III, a real estate salesman. Among other things, this agreement provided: When Salesman performs any service whereby a commission is earned, the commission when collected, shall be divided between the Broker and Salesman in the manner as set out in Schedule attached hereto, or the office policy manual of the broker. The agreement also specified that a [s]alesman's right to commissions or divisions thereof, which accrued prior to the termination of this contract shall not be divested by the termina- tion hereof. The parties stipulated that no written schedule or office policy manual ever existed but that, under an oral agreement between respondent and Mr. Lovett, respondent would have paid Mr. Lovett $441.00 if he had been employed when the Oliver-Kelly transaction closed and had otherwise performed the duties of a listing salesman. Mr. Lovett and respondent never discussed what would happen as to listing commissions when he left her employ. While employed by respondent, Mr. Lovett obtained for the firm the exclusive right to sell a home belonging to Mr. and Mrs. Oliver. Thereafter, Mr. Lovett facilitated execution of a contract between the Olivers and the Kellys in which the Kellys agreed to buy the house for $34,000.0 "contingent upon purchaser qualifying for a VA insured loan in the amount specified." On August 11, 1975, the property was appraised at less than $34,000.00; and a "VA insured loan in the amount specified" proved unavailable to the Kellys. About the time this contract fell through, Mr. Lovett said he was going to Mt. Dora to look for work. The last week of August, 1975, Mr. Lovett spent in Orlando looking for a job. At the end of the week, Mr. Lovett returned to respondent's office, cleaned out his desk and announced that he was leaving. Respondent heard him say this before she left town for a long weekend. The following Tuesday, when the office reopened after Labor Day, respondent wrote petitioner, advising that Mr. Lovett was no longer associated with her as of the date of the letter. Mr. Oliver, who had moved to Georgia, returned to Brevard County for the Labor Day weekend and contacted respondent's office. Respondent's son, who was working as a real estate salesman for his mother, reopened discussions with the Kellys. As a result, the Kellys agreed a second time to buy the Olivers' house, this time at a price of $31,500.00. This second agreement, styled an "Amendment" (sic) to the first contract, was reduced to writing and signed by the principals on August 30, 1975. This second agreement provided that respondent's office be paid a commission of $2,205.00. The transaction closed the following month. Respondent originally refused Mr. Lovett's demands for commissions on account of the Oliver-Kelly sale. After Mr. Lovett left respondent's office, however, respondent paid him both listing and sales commissions on account of another transaction which closed before he left respondent's employ. After Mr. Lovett enlisted the aid of petitioner, respondent paid Mr. Lovett $220.00 in settlement of his claim for the listing commission on account of the Oliver- Kelly sale.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 7th day of May, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Post Office Box 1900 Orlando, Florida 32802 Charles Holcomb, Esquire Post Office Box 1657 Cocoa, Florida 32922
The Issue Whether Respondents committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner is the state governmental agency charged with the licensing and regulation of real estate brokers and sales associates, pursuant to section 20.165 and chapters 120, 455, and 475, Florida Statutes. At all times material to this cause, Mr. Chancey was not a licensed Florida real estate agent/sales associate or broker. Prior to the alleged misconduct giving rise to this proceeding, Mr. Chancey registered the fictitious name "Rental Search" with the Florida Department of State and conducted business under that name. On or about December 13, 2006, Mr. Chancey placed an advertisement in a publication known as "www.theflyer.com"3 (hereinafter "the Flyer"), which read as follows: EFFICIENCY-$120/WEEK Apartment $195/week Includes Utilities. Furnished Unfurnished. Also Nice Houses For Rent. 954-607-1949 (Emphasis in original). In the following days, a copy of the Flyer was delivered to Daniel Kerrigan, who noticed Mr. Chancey's advertisement. Mr. Kerrigan called the telephone number listed in the advertisement and was connected to an automated message, which advised that a "Rental Search directory" could be obtained at Hollywood Postal, a pack and ship store located in Hollywood, Florida. The automated message further informed Mr. Kerrigan that the Rental Search directory contained over 3,000 properties that were readily available for rent. On or about December 18, 2006, Mr. Kerrigan secured a copy of the Rental Search directory for $125 at the Hollywood Postal store. At the time of purchase, Mr. Kerrigan signed a pre-printed form, which provided in relevant part: Under this Agreement, RENTAL SEARCH provides our LANDLORDS TELEPHONE DIRECTORY which contains almost every landlords' telephone number within 20 miles of HOLLYWOD POSTAL, Hollywood, FL. We list each landlord's telephone number, the type of property formerly marketed, the area and price. Often the landlords have other rentals of the exact same type, as formerly advertised, available, or soon coming available. It shall be your responsibility to call the landlords for availability. Today's directory has about 3,000 listings. Updates are placed online and are free to clients. Landlords Telephone Directory is the source that enables you to reach the landlords who are not in today's newspaper so you can learn of the new rentals BEFORE they are advertised. We require a $125 deposit to back up your word that you will: SELECT A RENTAL either from our LANDLORDS TELEPHONE DIRECTORY or from any current newspaper or publication where the landlord had placed an ad. (A rental from any publication will qualify for your refund). REGISTER YOUR SELECTED RENTAL prior to move-in with sixty days from today's date below. (This means you have up to 60 days to choose a place, and you must register your rental before you move in.) STAY SIX MONTHS MINIMUM in your selected rental complying with all rental terms. PAY YOUR RENT ON TIME during the rental period. GIVE A 2-WEEK NOTICE of your intent to move out, to the landlord, and register your intent to move out two weeks before you move, with our office. If you do the above, we will be pleased to refund your $125 deposit upon move-out. If you FAIL to do the above your $125 will not be returned. (Emphasis added). Upon contacting various landlords in the directory and learning that no properties were available, Mr. Kerrigan unsuccessfully attempted to obtain a refund of his $125 payment. The undersigned finds, as a matter of ultimate fact, that Mr. Chancey acted as a real estate broker without a valid license, contrary to section 475.42(1)(a), Florida Statutes, and is therefore subject to discipline pursuant to section 455.228, Florida Statutes. Jurisdiction
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Real Estate, issue a final order, as follows: Finding Respondent Roger Chancey guilty of acting as a broker without a license, as alleged in Count I of the Administrative Complaint, and imposing an administrative fine in the amount of $500. Dismissing Count II of the Administrative Complaint. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2011.
The Issue The issues in this matter are whether the Department of Business and Professional Regulation, Division of Real Estate (Petitioner) proved that Derek Welling (Respondent) is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes; and whether Petitioner proved that Respondent is guilty of failing to account and deliver funds in violation of Subsection 475.25(1)(d)1, Florida Statutes; and if so, what is the appropriate discipline?
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes. Respondent is a licensed realtor and has been at all times material hereto, having been issued license number 0582890 under Chapter 475, Florida Statutes. In 1989, Respondent founded UK Realty, a real estate brokerage firm, with his son-in-law, Russell Christner. From 1989 thru the summer of 1996, Respondent primarily served as UK Realty's international sales representative while Mr. Christner served as its qualified broker. Respondent traveled to various trade shows primarily in Europe and encouraged customers to purchase rental properties in the central Florida area. In 1991, Respondent and Mr. Christner formed a short- term rental property management company known as Connoisseur Homes, Inc. (Connoisseur) to manage the rental properties of UK Realty's domestic and international clients. In 1993, Respondent and Christner sold a one-third interest in Connoisseur to Mr. Graham Greene, who immediately became president of Connoisseur and served as its day-to-day operations manager. Although Respondent maintained a one-third ownership in Connoisseur, he remained the company's international sales associate. Respondent was generally not involved in the day-to-day management and operations of Connoisseur and had little personal knowledge of the factual circumstances surrounding the client complaints that form the basis of Petitioner's allegations. Each of the allegations levied against Respondent in Petitioner's Amended Administrative Complaint involves complaints filed by property owners relating to contract services with Connoisseur. There is no evidence in the record that any of the property owners was dissatisfied with the services of Respondent or Connoisseur prior to the summer/fall of 1996. Hart Property In 1994, Michael Hart, a resident of England, engaged the services of UK Realty and purchased a rental home property in Davenport, Florida. Mr. Hart was referred to Mr. Richard Wilkes, a representative of Connoisseur, to manage his property. On May 17, 1995, Mr. Hart contracted with Connoisseur to provide rental management services. Mr. Hart placed an initial deposit with Connoisseur to purchase various items and maintained a $1000 balance in an escrow account to pay the annual taxes and monthly expenses associated with the management of the property. Pursuant to his contract with Connoisseur, Mr. Hart received periodic statements from Connoisseur detailing all moneys collected from tenants, escrow balances, and any other activity in his account. According to the statements Mr. Hart received, Connoisseur booked nine persons to stay in his property between October of 1996 and January of 1997. While Connoisseur received approximately $9,844.60 for these rentals, Mr. Hart received none of the rental proceeds. On or about January 3, 1997, Mr. Hart received notice from the Polk County tax collector indicating that the "tourist development tax" associated with his property was delinquent for the months of September, October, and November of 1996. In addition, the letter indicated that Connoisseur made a payment to Polk County for September 1996 that was returned for insufficient funds. Shortly thereafter, Mr. Hart was advised that the cable and electricity to the property had been disconnected for non-payment. Glass Property In May 1993, Mr. Colin Glass purchased a rental home in Davenport, Florida, and contracted with Connoisseur to manage the property. Pursuant to the contract, Connoisseur agreed to advertise and list the property, manage the reservations and timely pay the rental property's expenses. Mr. Glass agreed to receive $500.00 for each week that the property was rented minus a cleaning fee. Pursuant to the contract, Mr. Glass placed a $1000 deposit with Connoisseur to pay the initial maintenance costs associated with the property. Thereafter, Mr. Glass received periodic statements from Connoisseur detailing the funds received, occupancy, and expenses paid to manage his property. The statement for the month ending November 30, 1996, indicates that Connoisseur collected $5,290.00 in rental proceeds from tenants who rented the property between August of 1996 and January of 1997 and paid $110 for cleaning services on November 8 and 21, 1996. In November, 1996, Mr. Glass requested a detailed accounting from Connoisseur regarding his property. On December 6, 1996, Mr. Glass received a written letter on Connoisseur stationary, signed by Kelleen Newman, a Connoisseur employee responsible for preparing accounting statements during the relevant period. The letter advised Mr. Glass that Connoisseur owed Mr. Glass approximately $1,750.00 for payments received pursuant to bookings under the names Beaumont and Tullet. To date, Mr. Glass has not received the rental proceeds. In addition, Connoisseur failed to pay the property tax bill associated with the Glass property as required by the management contract, and it became delinquent. Hamlyn Property On September 22, 1993, John Hamlyn purchased a home in Davenport, Florida. Five months later, on February 22, 1994, Mr. Hamlyn hired Connoisseur to manage his rental property. Pursuant to the contract, Connoisseur agreed to advertise and rent the property, manage the collections, and pay the operational expenses. Mr. Hamlyn placed a $500.00 deposit with Connoisseur to perform the contract and was required to maintain that balance in the account. In November of 1995, Respondent and Connoisseur increased the required escrow balance to $1000.00. In January of 1997, immediately following the demise of Connoisseur, Mr. Hamlyn maintained an escrow account with Connoisseur. Mr. Hamlyn did not receive an accounting of the escrowed funds or a refund of the balance. The evidence is undisputed that Mr. Hart, Mr. Glass, and Mr. Hamlyn each delivered funds in trust to Connoisseur which were not accounted for or returned. The evidence is undisputed that Connoisseur, in 1996, received rental proceeds as agents on behalf of Mr. Hart and Mr. Glass, which were not remitted to the owners. The evidence is undisputed that Connoisseur, in 1996, failed to pay certain utility bills and tax bills as required in its contracts with Mr. Hart and Mr. Glass. Connoisseur's Collapse Connoisseur's operational and financial failure surfaced on September 13, 1996, when Mr. Green, the company's co-owner and day-to-day operations manager, without notice, resigned as President of Connoisseur and formed a competing property management company. To make matters worse, within days, Mr. Green hired key staff away from Connoisseur including Richard Stanton, Connoisseur's office manager, accountant and licensed real estate broker, as well as Dyer Scott, the company's book-keeper. Shortly thereafter, Mr. Green's new company was operational and selectively securing new management agreements with Connoisseur's client list. In response, Respondent immediately evaluated Connoisseur's financial and operational status and attempted to manage its problems. Respondent advised all of Connoisseur's homeowners of the company's status, including the departure of the key operational owner and employees, but tried to assure them that the company was headed in the right direction. In fact, in a news update dated October 15, 1996, Respondent advised all of the clients, including Mr. Hart, Mr. Glass, and Mr. Hamlyn of the following: Upon investigation we were appalled to find that most of our homeowners are waiting on payments and upon further investigation we found that in many cases payment had never been collected from the tour operator. This situation is being corrected immediately and manual invoices are being prepared for collection . . . I'm happy to say that approximately $200,000 in back bookings will be properly allocated to our homeowners this month. Connoisseur did not recover. Within two months, 150 of Connoisseur's 270 homeowners cancelled their management contract with Connoisseur and on January 1, 1997, Respondent sold his interest in Connoisseur to Richard Wilkes and received a total of $15,000.00. Respondent experienced complete financial loss as a result of the demise of Connoisseur. His home was foreclosed and his vehicle was repossessed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Amended Administrative Complaint filed against Respondent in this matter be dismissed. DONE AND ORDERED this 3rd day of July, 2003, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2003. COPIES FURNISHED: Victor L. Chapman, Esquire Barrett, Chapman & Ruta, P.A. 18 Wall Street Post Office Box 3826 Orlando, Florida 32802-3826 Christopher J. DeCosta, Esquire Department of Business and Professional Regulation Hurston Building, North Tower 400 West Robinson Street, Suite N809 Orlando, Florida 32801 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy P. Campiglia, Acting Director Department of Business and Professional Regulation 400 West Robinson Street Suite 802, North Orlando, Florida 32801
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated December 22, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the government licensing and regulatory agency with the responsibility and duty to investigate and prosecute persons holding licenses and registrations as real estate brokers and real estate broker corporations. See § 475.021, Fla. Stat. The Florida Real Estate Commission (“Commission”) has the authority to impose discipline on persons licensed pursuant to Chapter 475, Part I, Florida Statutes. See § 475.25, Fla. Stat. At the times material to this proceeding, Ms. Iverson was a real estate broker licensed in Florida, having been issued license numbered 3184122. Sanctum Stay Corporation was a corporation registered as a real estate broker in Florida, having been issued license numbered 1032989. Ms. Iverson operated as the qualifying broker and an officer of Sanctum Stay Corporation, which was also known at the time material to this proceeding as Equilect Capital, Inc. ("Equilect Capital"). In or about October 2008, Ms. Iverson, in her capacity as a real estate broker, reached a verbal agreement with Sharon Hendee whereby Ms. Iverson agreed to rent to Ms. Hendee a house at 2880 Northeast 9th Street, Pompano, Florida, from January 24, 2009, through February 7, 2009. Pursuant to the agreement, Ms. Hendee was to pay a $1,000.00 refundable deposit on the house, and she wrote a check dated October 24, 2008, to Equilect Capital in the amount of $1,471.81. On January 24, 2009, Ms. Hendee's bank records reflect a transaction in the amount of $3,246.09, payable to Equilect Capital, which was the final payment for the rental of the house at 2880 Northeast 9th Street, Pompano, Florida. In an electronic mail dated January 8, 2009, Ms. Iverson confirmed that she had received payment for the rental commencing January 24, 2009. Ms. Hendee and/or her relatives occupied the rental house during the agreed-upon period of time in January and February 2009. Ms. Hendee did not receive a refund of her $1,000.00 deposit from Ms. Iverson, and, in or about April 2009, she filed a complaint with the division. In an electronic mail exchange between Ms. Iverson and Ms. Hendee that took place on May 14, 2009, Ms. Iverson stated that she had set up a list of people she needed to pay, and she included the list in the electronic mail. Ms. Hendee’s name was on the list, followed by the notation “$1,000.00 stay 24 Jan - 7 Feb 2009.”2 Ms. Iverson asked Ms. Hendee for her address as part of the electronic mail exchange on May 14, 2009, explaining that she needed Ms. Hendee’s mailing address so she could send Ms. Hendee a check. Ms. Hendee provided Ms. Iverson with her address by electronic mail on May 14, 2009. As of the final hearing, Ms. Hendee had not received a refund of her $1,000.00 deposit. As part of the Division’s investigation of Ms. Hendee’s complaint, Krystal Cordo, the Division’s investigator, met with Ms. Iverson and her husband on September 4, 2009, at the offices of the Sanctum Stay Corporation. At the meeting, Ms. Iverson told Ms. Cordo that she had opened an escrow account for one month to handle “this specific transaction” but that the account was closed at the time of the September 4, 2009, meeting. Ms. Iverson also told Ms. Cordo that she “did not have copies of her bank/reconciliation statements or a copy of the transaction file.”3 Ms. Cordo asked Ms. Iverson to provide her with a statement showing that the account was closed. During the meeting on September 4, 2009, Ms. Iverson signed a Division form entitled “Office Inspection & Escrow/Trust Account Audit Form,” on which Ms. Cordo noted: “Broker will make available her bank statements/reconciliation for when she did hold escrow no later than 9-11-09.”4 Ms. Cordo made a follow-up visit to the offices of Sanctum Stay Corporation on September 11, 2009, to obtain the requested documents. Ms. Iverson’s husband was present and advised Ms. Cordo that Ms. Iverson was not in the office. Ms. Iverson had not, at the time of the final hearing, provided the requested bank statements or reconciliations to Ms. Cordo, despite telephone calls Ms. Cordo made to Ms. Iverson, which Ms. Iverson did not return, and electronic mail messages sent to Ms. Cordo by Ms. Iverson. Neither Ms. Iverson nor Sanctum Stay Corporation has previously been the subject of a disciplinary action by the Florida Real Estate Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order imposing on Linda Johanna Iverson and Sanctum Stay Corporation an administrative fine in the amount of $4,000.00 and suspending the brokerage licenses of Linda Johanna Iverson and Sanctum Stay Corporation for a period of five years. DONE AND ENTERED this 27th day of September, 2010, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2010.
Findings Of Fact In July 1976 Berger was working as a salesman for Property Resales Services when he and Tritsch decided to set up a similar advance fee listing operation. Berger was knowledgeable of the operation and Tritsch held a broker's license. Both had been engaged for several years in land sales in Florida and at one time both worked for the same land developer selling land to mostly out of state investors. Each put up $1,000 to get the corporation formed and in operation. Stock was equally split between Berger's son Albert and Tritsch with two shares unissued. Shortly after the business became operational Berger and Tritsch repaid themselves $750 of their investment/loan. Berger was to supervise the obtaining of listings and Tritsch was to set up the resale operation. Shortly before the beginning of operations Berger suffered a heart attack and was hospitalized For some two and one half weeks. Following his release from the hospital he was able to spend only limited time in the office. However, script for the telephone salesmen had been prepared as well as listing contracts and brochure to be sent to those customers indicating a desire to sell their land. The business opened as scheduled in a rented office with WATS lines installed. Similar to other advance fee operations the salesmen worked from about 6 P.M. until 10 P.M. making phone calls to out of state owners of Florida land. Most of the owners contacted were those who had earlier bought land in the developments of Rotunda, Royal Highlands, and Port Charlotte with which Tritsch and Berger were familiar. Lists of owners were purchased from a company in Miami providing such information and copies of the Charlotte County tax records were obtained. NPS joined the National Multiple Listing Service (NMLS) and the listings obtained were to be published in that publication. They also indicated in their sales pitch and on the listing contract that advertising would be placed in local newspapers. Salesmen were paid $125 for each listing received with the $350 advance listing fee obtained from the property owner except Egan who was paid $175 for each listing. Shortly after Berger became well enough to devote time to the affairs of NPS, Tritsch broke a shoulder in a motorcycle accident and was limited in his movements by a cast for some six weeks. This was followed by an operation on his nose also injured in the accident. Berger did little, if any, telephone solicitation. His function appeared to be that of supervisor and consultant. His son, Albert Berger, was given the job of secretary, bookkeeper and keeper of the records which the son, a fifty percent shareholder in the corporation, had no idea what happened to following his departure in December, 1975. Exhibit 6 shows checks were made payable to Annette Berger, presumably a daughter, as wages. Berger and Tritsch were paid $300 to $500 per week (net) for their services depending upon availability of funds, Albert Berger received $250 per week (net) and Annette Berger received $100 to $225 per week (net). Net wages are normally the salary left after the deduction for withholding and FICA taxes. Since no check stubs showed payment to the Internal Revenue Service the withheld portion of the salaries apparently was not remitted. Additionally Berger and Tritsch were reimbursed for travel expenses, but no testimony was adduced that Berger did any traveling on the business of the company. Nevertheless Berger was paid travel expenses and one check was made payable to an airline for nearly $300. Respondents Egan and Resnik as well as several other salesmen, not named as Respondents here, manned the telephones during the operating hours of 6:00 to 10:00 P.M. They generally followed the script given to them and no evidence was presented that any known false representation was made by either Egan or Resnik. Neither Egan nor Resnik attempted to sell property. However, Egan testified that if a customer was happy with his land and didn't want to sell, he would ask if the customer would like to buy more. No evidence was presented that either salesmen advised customers that contractors and other brokers were being transported to the property or that they suggested the customer could obtain an inflated price for his property. No sales of the listings so received was ever made by NPS. If the customer indicated a willingness or desire to sell his property when first called he was advised that literature would be mailed to him to more fully explain the services offered by NPS. The salesman then turned the name in to the office and a blank contract (Exhibit 3) and brochure (Exhibit 4) were mailed to the customer. After the customer received the material the salesman would again call and go over the provisions of the contract with the customer and attempt to induce the customer to sign the contract and forward it with his $350 listing fee for services NPS were to perform in selling the property so listed. The customers were told that the advance fee was used to advertise the property and to cover office expenses, however the fee would be deducted from the commission when the property was sold, and, in effect, refunded to the property owner. Both Resnik and Egan were led to believe that a sales office was being set up on the west coast, near the property for which listings were being solicited, however, no such office was ever opened. No advertising of any property was ever placed in newspapers or in any other media than the National Multiple Listing Services. As a matter of fact, no evidence was presented that any property for which NPS was paid an advance listing fee was ever advertised for sale in NMLS. Exhibit 6 indicates that NPS paid a total of $62.50 to NMLS before going out of business near the end of 1975. During the four to five months NPS remained in operation in excess of $52,000 was received from customers as advance listing fees and no sales of any of these listings was made. Respondents Tritsch and Berger both blamed their respective accident and illness for their failure to consummate sales of the properties for which listing fees were obtained.
The Issue The issues in this case are as follows: Was Respondent Daniel Oldfather legally responsible for accounting and refund? Were the refund provisions of the receipt form printed in type as required by Rule 21V-10.15, Florida Administrative Code? Was Richard Vanicek due a 75 percent refund? Was Vanicek due a complete refund because of inaccurate information given him? Did Vanicek make written demand for a refund, and was a written demand for the refund necessary?
Findings Of Fact In September of 1979, Sun Rentals and Management, Inc., was a corporate real estate broker holding license number 0208997 and doing business at 2703 East Oakland Park Boulevard in Fort Lauderdale, Florida. At that time, Victor Stevens was a licensed real estate salesperson employed by Sun Rentals. Stevens, as an employee of Sun Rentals, interviewed Richard D. Vanicek concerning Vanicek's rental needs. Vanicek entered into a contract with Sun Rentals (Petitioner's Exhibit number 1) under which he paid Sun Rentals $45 and Sun Rentals was to provide him with rental information on available rentals. Vanicek received a receipt (Petitioner's Exhibit number 3) which provided in pertinent part as follows: ... Notice, pursuant to Florida Law: If the rental information provided under this contract is not current or accurate in any material aspect, you may demand within 30 days of this contract date a return of your full fee paid. If you do not obtain a rental you are entitled to receive a return of 75 percent of the fee paid, if you make demand within 30 days of this contract date. ... It was agreed that the receipt was printed totally in ten-point type. Vanicek attempted to visit one of the listings provided to him by Sun Rentals. He encountered difficulty in locating the listing; however, his lack of familiarity with Fort Lauderdale may have contributed to his difficulties. Vanicek found a rental through his own efforts and requested a refund of 75 percent of his $45 fee by telephone. He made his request first to Stevens, who referred him to Daniel Oldfather pursuant to office policy. As a result of this referral Vanicek spoke with a man at Sun Rentals, who may have been Oldfather, and restated his request for a refund. His request was denied. Daniel Oldfather was the licensed broker/salesman for Sun Rentals during September, 1979. He was the office manager of Sun Rentals at that time. Martin Katz was broker for Sun Rentals in September of 1979 (Transcript; Page 261, L 21). Oldfather was the next man in authority at the office under Katz (Transcript; Page 235, L 6). Katz delegated to Oldfather the authority to make refunds. The rental forms, including the rental receipt form (Petitioner's Exhibit number 3), were submitted to the Board of Real Estate.
Recommendation Having found that Daniel Oldfather was not guilty of any of the allegations in the amended Administrative Complaint, it is recommended that Counts I, II and III against him be dismissed. Having found that Sun Rentals and Management, Inc., is not guilty of the allegations contained in Count III of the amended Administrative Complaint, it is recommended that Count III against Sun Rentals be dismissed. Having found that Sun Rentals is guilty of violating Sections 475.25(1)(d) and 475.453(1), Florida Statutes, it is recommended that the license of Sun Rentals be suspended for 60 days, during which time the officers and directors of said corporation may not engage in the practice of real estate sales or brokerage under their names or in any other corporate name. DONE and ORDERED this 4th day of May, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire Post Office Box 14723 Fort Lauderdale, Florida 33302 James Curran, Esquire 200 SE Sixth Street, Suite 301 Fort Lauderdale, Florida 33301 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent is and at all material times has been licensed as a real estate broker, Florida license number 0388729. Respondent was licensed with United Farm Agency of Florida, Inc. United Farm Agency of Florida operated two offices relevant to this proceeding, one office in Live Oak, the other in Lake City. Both offices were headed by William Goff, another licensed broker. During the summer of 1985, Goff, desiring to retire, made arrangements with United Farm Agency, through his supervisor, Steve Goddard, to withdraw from the operations of the offices. Goff left the Lake City office in July, 1985, and left the Live Oak office in October, 1985. Respondent was employed by United Farm Agency, through supervisor Steve Goddard, in July, 1985, when he took over operation of the Lake City office, which Goff had already vacated. Prior to Goff's retirement, Goff and Goddard verbally agreed that Goff would receive a portion of the commission paid to the seller of existing property listings Goff had obtained. This agreement was relayed by Goddard to Respondent, who verbally agreed to pay the fee on listings which were given to Hofmann. The agreed sum, referred to as a "listing fee," was to be 30% of the Respondent's 60% share of the total commission. The fee was to be paid to Goff, if and when Respondent sold property which remained under a valid Goff-executed listing contract. Goff and the Respondent did not directly discuss the arrangement, but relied on Goddard to act as the mediator. On or about June 26, 1985, Goff listed for sale, property owned by the Lewandowski family. The listing contract stated that the listing contract was to remain effective for a period of one year; however the expiration date was mistakenly entered on the contract as June 26, 1985. The contract expiration date should have been stated as June 26, 1986. The evidence did not indicate that the contract was intended to have been effective for only one day. While the Goff listing remained effective, the Lewandowskis allegedly entered into a second listing contract, this time with the Respondent. Respondent stated that he did not believe the Goff listing contract to be valid due to the mistaken expiration date. The Lewandowskis did not sign a cancellation of the Goff listing contract. Goff, not yet fully retired, continued to show the property to prospective purchasers, but did not inform Respondent that he continued to show the property. During the time the original Goff listing was effective, the Respondent found a buyer for the Lewandowski property. The agreed sales price was $240,000. The Respondent's share of the commission was about $8,640. The Respondent retained the full commission, and refused to pay the "listing fee" to Goff. Goff contacted Goddard, who reminded the Respondent of the agreement to pay the fee. Respondent refused to pay the listing fee, claiming that he had not been given the listing when he became employed by United Farm Agency. Goff proceeded to file suit to collect the fee. In May 1987, a Final Judgement was entered in Columbia County Court, Case No 86-845-CC, finding Respondent liable for payment of the listing fee and directing Respondent to pay to Goat the sum of $4,320.00, plus $604.92 interest, and $50.00 costs. Respondent has failed and refuses to pay the judgement.
Recommendation Based upon the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order suspending the licensure of Peter K. Hofmann for a period of two years. DONE and ENTERED this 22nd day of March, 1989, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5541 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 1-5. Accepted. 6-7. Accepted, as modified in the Findings of Fact. Rejected, irrelevant. Accepted. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 1-3. Accepted. 4. Rejected, not supported by the weight of the evidence. 5-6. Rejected insofar as mere restatement of testimony, otherwise accepted, as modified in the Findings of Fact. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Peter K. Hofmann 73 Quinlan Drive, #1 Greenville, South Carolina 29611 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
